Unequal Protection: Corporate Control of Politics

(Image: Jared Rodriguez / Truthout)During the bruising primary election season of 2008, a right-wing group put together a ninety-minute hit-job on Hillary Clinton and wanted to run it on TV stations in strategic states. The Federal Election Commission (FEC) ruled that advertisements for the “documentary” were actually “campaign ads” and thus fell under the restrictions on campaign spending of the McCain- Feingold Act and thus stopped them from airing. (Corporate contributions to campaigns have been banned repeatedly and in various ways since 1907 when Republican President Teddy Roosevelt pushed through the Tillman Act.)

Citizens United, the right-wing group, sued to the Supreme Court, with right-wing hit man and former Reagan solicitor general Ted Olson—the man who argued Bush’s side of Bush v. Gore—as their lead lawyer.

This new case, Citizens United v. Federal Election Commission, presented the best opportunity for the Roberts Court to use its five-vote majority to totally rewrite the face of politics in America, rolling us back to the pre-1907 Era of the Robber Barons. And if there was a man to do it, it was John Roberts.

Although he was handsome, with a nice smile and photogenic young children, Roberts was no friend to average working Americans. If anything, he was the most radical judicial activist appointed to the Court in more than a century. He had worked most of his life in the interest of the rich and powerful and was chomping at the bit for a chance to turn more of America over to his friends.

As Jeffrey Toobin wrote in the New Yorker (“No More Mr. Nice Guy”):

In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.[1]

And the fastest way the modern Republican Party could recover its power over the next decade was to immediately clear away all impediments to unrestrained corporate participation in electoral politics. If a corporation likes a politician, it can ensure that he is elected every time; if it becomes upset with a politician, it can carpet-bomb her district with a few million dollars’ worth of ads and politically destroy her.

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In the Citizens United case, the Roberts Court listened to arguments and took briefs and even discussed it among themselves as if they were going to make a decision. But instead of deciding the case on the relatively narrow grounds on which it had originally been argued—whether a single part of a single piece of legislation (McCain-Feingold) was unconstitutional—the Court asked for it to be reargued in September 2009 and asked that the breadth of the arguments be expanded to reexamine the rationales for Congress to have any power to regulate corporate “free speech.”

In this they were going along with a request from Theodore B. Olson, who argued Bush v. Gore, and would now not just look at this narrow case but go back nearly twenty years to reexamine and perhaps overturn their own ruling in the Austin v. Michigan Chamber of Commerce case, where the Court had held that it was constitutional for Congress to pass limits on corporate political activities, as well as its decision in 2003 to uphold McCain-Feingold as constitutional.”[2]

The Background of Citizens United

The setup for this 2010 decision came in June 2007 in the Federal Election Commission v. Wisconsin Right to Life case, [3] in which the Roberts Court ruled that the FEC couldn’t prevent Wisconsin Right to Life from running ads just because it was a corporation.

once defended his criticism of the Moroccan monarch (lèse majesté being a serious crime in Morocco) as follows: “I’m not a revolutionary, I’m just defending freedom of speech. I never said we had to change the king—no, no, no, no! But I said that some things the king is doing, I do not like. Is that a crime?” Well, in the United States (making due allowance for the fact that we have elected representatives instead of a king) it is a crime, at least if the speaker is a union or a corporation (including not-for-profit public-interest corporations)... That is the import of §203 of the Bipartisan Campaign Reform Act of 2002 (BCRA)...

The idea of Congress passing laws that limited corporate “free speech” was clearly horrifying to Scalia. He went after the 1990 Austin v. Michigan Chamber of Commerce case, in which the then-Rehnquist Court had ruled that the Michigan Chamber of Commerce was limited in its “free speech” in a political campaign because it was a corporation.

“This [Austin] was the only pre-McConnell case in which this Court had ever permitted the Government to restrict political speech based on the corporate identity of the speaker,” Scalia complained. “Austin upheld state restric tions on corporate independent expenditures,” and, God forbid, “The statute had been modeled after the federal statute that BCRA §203 amended...”

The Austin case, Scalia concluded, with four others nodding, “was a significant departure from ancient First Amendment principles. In my view, it was wrongly decided.”

Scalia also quoted at length from opinions in the Grosjean v. American Press Co. 1936 case, in Scalia’s words, “holding that corporations are guaranteed the ‘freedom of speech and of the press, safeguarded by the due process of law clause of the Fourteenth Amendment’”; he also quoted from the 1986 Pacific Gas & Elec. Co. v. Public Util. Comm’n of California case: “The identity of the speaker is not decisive in determining whether speech is protected”; “corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster.”

The bottom line, for Scalia, was, “The principle that such advocacy is ‘at the heart of the First Amendment’s protection’ and is ‘indispensable to decision making in a democracy’ is ‘no less true because the speech comes from a corporation rather than an individual.’”

Continuing to quote from a plurality opinion in Pacific Gas, Scalia “rejected the arguments that corporate participation ‘would exert an undue influence on the outcome of a referendum vote’; that corporations would ‘drown out other points of view’ and ‘destroy the confidence of the people in the democratic process...’”

As Scalia himself wrote in his earlier opinion in FEC v. Wisconsin Right to Life: “FECA was directed to expenditures not just by ‘individuals,’ but by ‘persons,’ with ‘persons’ specifically defined to include ‘corporation[s].’” (Italics added.)

Chief Justice Roberts weighed in, too, in the main decision.[4] It’s a fascinating decision to read—and search for occurrences of the word corporation. Here is one of Roberts’s more convoluted observations in defense of corporate free-speech rights:

Accepting the notion that a ban on campaign speech could also embrace issue advocacy would call into question our holding in Bellotti that the corporate identity of a speaker does not strip corporations of all free speech rights. It would be a constitutional “bait and switch” to conclude that corporate campaign speech may be banned in part because corporate issue advocacy is not, and then assert that corporate issue advocacy may be banned as well, pursuant to the same asserted compelling interest, through a broad conception of what constitutes the functional equivalent of campaign speech, or by relying on the inability to distinguish campaign speech from issue advocacy.

Bottom line: corporate free-speech rights are real rights that must be respected.

Justice Souter wrote a rather frightening dissent[5] (this was a 5-to-4 decision, with the usual right-wing suspects in the majority) in the FEC v. WRTL case. In it he worried out loud that the unelected Court’s knocking down restrictions on corporate or union funding of elections would be destructive of the core values of democracy and the electoral process on which it rests:

Finally, it goes without saying that nothing has changed about the facts. In Justice Frankfurter’s words, they demonstrate a threat to “the integrity of our electoral process,” which for a century now Congress has repeatedly found to be imperiled by corporate, and later union, money: witness the Tillman Act, Taft-Hartley, FECA, and BCRA.

McConnell was our latest decision vindicating clear and reasonable boundaries that Congress has drawn to limit “the corrosive and distorting effects of immense aggregations of wealth,” and the decision could claim the justification of ongoing fact as well as decisional history in recognizing Congress’s authority to protect the integrity of elections from the distortion of corporate and union funds.

After today, the ban on contributions by corporations and unions and the limitation on their corrosive spending when they enter the political arena are open to easy circumvention, and the possibilities for regulating corporate and union campaign money are unclear.

The ban on contributions will mean nothing much, now that companies and unions can save candidates the expense of advertising directly, simply by running “issue ads” without express advocacy, or by funneling the money through an independent corporation like Wisconsin Right to Life.

Sounding almost depressed, Souter closed his dissent with these words: “I cannot tell what the future will force upon us, but I respectfully dissent from this judgment today.”

Attempts by corporations (and their lawyers, like Roberts was before ascending to a federal court) to usurp American democracy are nothing new, as David Souter well knew. Corporatism has always been a threat to democracy. The problem was that corporations were gaining increasing traction in what had become a dire conflict with democracy itself. The rights of “natural” persons were losing ground at an accelerating pace, and in 2010 things got a whole lot worse very, very fast.

Citizens United: The Roberts Court Overturns a Century of Law

On January 21, 2010, in another 5-to-4 decision with the Republican five justices on the winning side, the Supreme Court ruled that it is unconstitutional for Congress to pass or the president to sign into law any restrictions on the “right” of a corporation to pour money into political campaigns, so long as the money isn’t directly given to the politicians, their campaigns, or their parties.

The majority decision, written by Justice Kennedy, was quite explicit in saying that the government has no right to limit corporate power or corporate “free speech.”[6]

Kennedy began this line of reasoning by positing, “Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints.”

It sounds reasonable. He even noted, sounding almost like something from a Martin Luther King Jr or JFK speech, that:

By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration.

But who is that “disadvantaged person or class” of whom Kennedy was speaking? He lays it out bluntly (the parts in single quotation marks are where he is quoting from previous Supreme Court decisions): “The Court has recognized that First Amendment protection extends to corporations....Under that rationale of these precedents, political speech does not lose First Amendment protection ‘simply because its source is a corporation.’”

Two sentences later he nails it home: “The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not ‘natural persons.’”

Bemoaning how badly corporations and their trade associations had been treated by the Congress of the United States for more than a hundred years in passing laws all the way back to the 1907 Tillman Act (which forbade corporations from giving money to politicians), Kennedy stuck up for the “disadvantaged” corporate “persons” the Roberts Court was seeking in this decision to protect:

The censorship we now confront is vast in its reach. The Government has “muffled the voices that best represent the most significant segments of the economy.” And “the electorate has been deprived of information, knowledge, and opinion vital to its function.” By suppressing the speech of manifold corporations, both for-profit and non-profit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests.

Paraphrasing James Madison’s plea in Federalist No. 10 that Americans resist the human tendency to form political factions but instead work together for the common good, Kennedy added at the end of that paragraph, “Factions should be checked by permitting them all to speak, and by entrusting the people to judge what is true and what is false.”

In other words, if a single corporation spends $700 million in television advertising to tell you that, for example, Senator Bernie Sanders is a “bad person” because he sponsored legislation it doesn’t like or that limits its profitability, and Sanders can raise only $3 million to defend himself with a few local TV spots, you as the TV viewer and voting citizen can easily decide which is true and which is not.

Justices Kennedy, Alito, Roberts, Thomas, and Scalia were writing as if they had never seen a political—or, for that matter, a consumer product— advertisement. The whole point of such campaigns is not to present the “truth” but to present an emotional (and often misleading) argument that will change people’s minds to conform to the message of the advertiser. But you won’t find a word of that simple reality of advertising and marketing anywhere in the Citizens United decision.

Corporate executives and their lobbyists saw the value to them of this Supreme Court decision immediately. On February 7, 2010, the New York Times published an article by David D. Kirkpatrick titled “In a Message to Democrats, Wall St. Sends Cash to G.O.P.” The article explicitly quoted banking industry sources who said that now that they could use their considerable financial power politically, they were experiencing “buyer’s remorse” over having given Obama’s presidential campaign $89 million in 2008: “Republicans are rushing to capitalize on what they call Wall Street’s ‘buyer’s remorse’ with the Democrats. And industry executives and lobbyists are warning Democrats that if Mr. Obama keeps attacking Wall Street ‘fat cats,’ they may fight back by withholding their cash.”[7]

The article quoted several banking sources as saying they were outraged that the president had criticized their industry for the financial meltdown of 2008 or their big bonuses. It wrapped up with a quote from Texas Republican John Cornyn, the senator tasked with raising money for the National Republican Senatorial Committee, noting that he was now making regular visits to Wall Street in New York City because: “I just don’t know how long you can expect people to contribute money to a political party whose main plank of their platform is to punish you.”

It was a loud shot across Obama’s bow, and within two weeks he had changed his tune on a wide variety of initiatives, ranging from taxes on the wealthy to banking, insurance, and pharmaceutical industry reforms.

The simple fact is that about $5 billion was spent in all the political campaigns from coast to coast in the elections of 2008, a bit less than $2 billion of that on the presidential race. Compare that with January 2010, when a small cadre of senior executives and employees of the nation’s top banks on Wall Street split up among themselves over $145 billion in personal bonus money.

If just those few thousand people had decided to take just 3 percent of their bonus and redirect it into a political campaign, no politician in America could stand against them. And now none do. And that’s just the banksters! Profits in the tens and hundreds of billions of dollars were reported in 2009 by oil, pharmaceutical, insurance, agriculture, and retailing industries—all now considering how to use part of their profits to influence political races.

Justice John Paul Stevens, with the concurrence of Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor, wrote the main dissent in the Citizens United case. Calling the decision “misguided” in the first paragraph of his ninety-page dissent, Stevens (and colleagues) pointed out that the majority on the Court had just handed our country over to any foreign interest willing to incorporate here and spend money on political TV ads.

If taken seriously, our colleagues’ assumption that the identity of a speaker has no relevance to the Government’s ability to regulate political speech would lead to some remarkable conclusions. Such an assumption would have accorded the propaganda broadcasts to our troops by “Tokyo Rose” during World War II the same protection as speech by Allied commanders. More pertinently, it would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans: To do otherwise, after all, could “‘enhance the relative voice’” of some (i.e., humans) over others (i.e., corporations).

Speaking directly to that issue, on the day of the decision British Broadcasting Corporation (BBC) investigative journalist Greg Palast wrote an article whose headline is self-explanatory: “Supreme Court to OK Al Qaeda Donation for Sarah Palin?”[8]

Palast laid it out explicitly and, according to four of the most senior members of the U.S. Supreme Court, correctly when he wrote, “Think: Manchurian Candidate.” He pointed out that our elections could now be decided not just by money-bombs from American corporations but “from ARAMCO, the Saudi Oil corporation’s US unit...or the Chinese People’s Liberation Army. Or from Bin Laden Construction corporation. Or Bin Laden Destruction Corporation.”

Ted Olson, the lawyer who argued the winning Citizens United side before the Court, lost his wife on the plane hijacked on 9/11 and flown into the Pentagon. “Maybe it was a bit crude of me,” Palast said, “but I contacted Olson’s office to ask how much ‘Al Qaeda, Inc.’ should be allowed to donate to support the election of his local congressman.” As of this writing, Palast tells me, Olson has not replied to his question.

In the same paragraph of the dissent just quoted about foreign corporations, Justice Stevens further points out the absurdity of granting corporations what are essentially citizenship rights under the Constitution, suggesting that perhaps the next SCOTUS decision will be to give corporations the right to vote: “Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.”

(Ironically, ten years earlier in the Alexander v. Mineta case, where citizens of Washington, D.C., were asking for the right to vote for a real member of Congress, just a few months before the Bush v. Gore case the Rehnquist Court had explicitly ruled that the Constitution does not guarantee the right of U.S. citizens to vote for president.)

Stevens recounted the history of the evolution of corporations in America, noting, “Corporations were created, supervised, and conceptualized as quasi-public entities, ‘designed to serve a social function for the state.’ It was ‘assumed that [they] were legally privileged organizations that had to be closely scrutinized by the legislature because their purposes had to be made consistent with public welfare.’”

Quoting earlier Supreme Court cases and the Founders, Stevens wrote: “The word ‘soulless’ constantly recurs in debates over corporations...Corporations, it was feared could concentrate the worst urges of whole groups of men.” Stevens was right: Thomas Jefferson famously fretted that corporations would subvert the Republic.

And, Stevens continued, the Founders could not have possibly meant to confer First Amendment rights of free speech on corporations when they wrote the Constitution in 1787 and the Bill of Rights in 1789 because, “All general business corporation statues appear to date from well after 1800”:

The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans they had in mind.

In an incredible irony, Stevens even quoted Chief Justice John Marshall, the man who had first, in the 1803 Marbury case, given the Court itself the power to overrule laws like McCain-Feingold passed by Congress: “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being a mere creature of law, it posses only those properties which the charter of its creation confers upon it.”

Stevens’s dissent called out Roberts, Alito, Scalia, Thomas, and Kennedy for their behavior in this case, which he said was “the height of recklessness to dismiss Congress’ years of bipartisan deliberation and its reasoned judgment...”:

The fact that corporations are different from human beings might seem to need no elaboration, except that the majority opinion almost completely elides it....Unlike natural persons, corporations have “limited liability” for their owners and managers, “perpetual life,” separation of ownership and control, “and favorable treatment of the accumulation of assets...that enhance their ability to attract capital and to deploy their resources in ways that maximize the return on their shareholders’ investments.” Unlike voters in U.S. elections, corporations may be foreign controlled.

Noting that “they inescapably structure the life of every citizen,” Stevens continued: “It might be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their ‘personhood’ often serves as a useful legal fiction. But they are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.”

In this very eloquent and pointed dissent, Stevens even waxed philosophical, asking a series of questions for which there couldn’t possibly be any clear or obvious answers given the Roberts court’s decision:

It is an interesting question “who” is even speaking when a business corporation places an advertisement that endorses or attacks a particular candidate. Presumably it is not the customers or employees, who typically have no say in such matters. It cannot realistically be said to be the shareholders, who tend to be far removed from the day-to-day decisions of the firm and whose political preferences may be opaque to management. Perhaps the officers or directors of the corporation have the best claim to be the ones speaking, except their fiduciary duties generally prohibit them from using corporate funds for personal ends. Some individuals associated with the corporation must make the decision to place the ad, but the idea that these individuals are thereby fostering their self-expression or cultivating their critical faculties is fanciful.

Stevens noted further, “The majority seems oblivious to the simple truth” that they are, with this decision, setting up a situation that “does not merely support the election of his local congressman.” As of this writing, Palast tells me, Olson has not replied to his question.

In the same paragraph of the dissent just quoted about foreign corporations, Justice Stevens further points out the absurdity of granting corporations what are essentially citizenship rights under the Constitution, suggesting that perhaps the next SCOTUS decision will be to give corporations the right to vote: “Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.”

(Ironically, ten years earlier in the Alexander v. Mineta case, where citizens of Washington, D.C., were asking for the right to vote for a real member of Congress, just a few months before the Bush v. Gore case the Rehnquist Court had explicitly ruled that the Constitution does not guarantee the right of U.S. citizens to vote for president.)

Stevens recounted the history of the evolution of corporations in America, noting, “Corporations were created, supervised, and conceptualized as quasi-public entities, ‘designed to serve a social function for the state.’ It was ‘assumed that [they] were legally privileged organizations that had to be closely scrutinized by the legislature because their purposes had to be made consistent with public welfare.’”

Quoting earlier Supreme Court cases and the Founders, Stevens wrote: “The word ‘soulless’ constantly recurs in debates over corporations...Corporations, it was feared could concentrate the worst urges of whole groups of men.” Stevens was right: Thomas Jefferson famously fretted that corporations would subvert the Republic.

And, Stevens continued, the Founders could not have possibly meant to confer First Amendment rights of free speech on corporations when they wrote the Constitution in 1787 and the Bill of Rights in 1789 because, “All general business corporation statues appear to date from well after 1800”:

The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans they had in mind.

In an incredible irony, Stevens even quoted Chief Justice John Marshall, the man who had first, in the 1803 Marbury case, given the Court itself the power to overrule laws like McCain-Feingold passed by Congress: “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being a mere creature of law, it posses only those properties which the charter of its creation confers upon it.”

Stevens’s dissent called out Roberts, Alito, Scalia, Thomas, and Kennedy for their behavior in this case, which he said was “the height of recklessness to dismiss Congress’ years of bipartisan deliberation and its reasoned judgment...”:

The fact that corporations are different from human beings might seem to need no elaboration, except that the majority opinion almost completely elides it....Unlike natural persons, corporations have “limited liability” for their owners and managers, “perpetual life,” separation of ownership and control, “and favorable treatment of the accumulation of assets...that enhance their ability to attract capital and to deploy their resources in ways that maximize the return on their shareholders’ investments.” Unlike voters in U.S. elections, corporations may be foreign controlled.

Noting that “they inescapably structure the life of every citizen,” Stevens continued: “It might be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their ‘personhood’ often serves as a useful legal fiction. But they are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.”

In this very eloquent and pointed dissent, Stevens even waxed philosophical, asking a series of questions for which there couldn’t possibly be any clear or obvious answers given the Roberts court’s decision:

It is an interesting question “who” is even speaking when a business corporation places an advertisement that endorses or attacks a particular candidate. Presumably it is not the customers or employees, who typically have no say in such matters. It cannot realistically be said to be the shareholders, who tend to be far removed from the day-to-day decisions of the firm and whose political preferences may be opaque to management. Perhaps the officers or directors of the corporation have the best claim to be the ones speaking, except their fiduciary duties generally prohibit them from using corporate funds for personal ends. Some individuals associated with the corporation must make the decision to place the ad, but the idea that these individuals are thereby fostering their self-expression or cultivating their critical faculties is fanciful.

Stevens noted further, “The majority seems oblivious to the simple truth” that they are, with this decision, setting up a situation that “does not merely pit the anticorruption interest against the First Amendment, but also pit[s] competing First Amendment values against each other.” And it becomes particularly problematic “when the speakers in question are not real people” but corporations.

This decision wasn’t merely wrong—both in a contemporary and a historical sense—the Stevens minority argued in their dissent; it was dangerous. The four-judge dissent was explicit, clear, and shocking in how bluntly the three seniormost members of the Court (plus the newbie, Sotomayor) called out their colleagues, two of whom were just recently appointed to the Court by George W. Bush.

They started by pointing out that the American people weren’t clamoring for corporations to have personhood and free-speech rights—that call was coming only from the Republican Five justices themselves: “The distinctive threat to democratic integrity posed by corporate domination of politics was recognized at ‘the inception of the republic’ and ‘has been a persistent theme in American political life’ ever since. It is only certain Members of this Court, not the listeners themselves, who have agitated for more corporate electioneering.”*

*Again, the words in single quotation marks are where, in the dissent, the justices themselves are quoting from previous SCOTUS rulings. I’ve removed all the reference citations, as they make it hard to read; anybody wanting to dive deeper into this ninety-page dissent can read it online at www.supremecourtus.gov/opinions/09pdf/08-205.pdf.

They continued, noting that even if we citizens—“the listeners” to corporate speech—were clamoring to hear more of it, it wouldn’t work to our interest because corporate interests are inherently different from human interests:

Austin recognized that there are substantial reasons why a legislature might conclude that unregulated general treasury expenditures will give corporations “unfair influence” in the electoral process, and distort public debate in ways that undermine rather than advance the interests of listeners. The legal structure of corporations allows them to amass and deploy financial resources on a scale few natural persons can match. The structure of a business corporation, furthermore, draws a line between the corporation’s economic interests and the political preferences of the individuals associated with the corporation; the corporation must engage the electoral process with the aim “to enhance the profitability of the company, no matter how persuasive the arguments for a broader or conflicting set of priorities.”

In point of fact, they continued, corporations have a legal obligation to work toward an interest (profits) that is often at odds with the needs of humans and, particularly, local communities. Regardless of how sweet or touchy-feely their Madison Avenue–produced commercials may be, at their core they are machines to make money, not living things and not citizens of a democratic republic. By having free-speech rights equal with people, they argued, corporations will actually harm the “competition among ideas” that the Framers envisioned when they wrote the First Amendment:

“[A] corporation...should have as its objective the conduct of business activities with a view to enhancing corporate profit and shareholder gain.” In a state election such as the one at issue in Austin, the interests of nonresident corporations may be fundamentally adverse to the interests of local voters. Consequently, when corporations grab up the prime broadcasting slots on the eve of an election, they can flood the market with advocacy that bears “little or no correlation” to the ideas of natural persons or to any broader notion of the public good. The opinions of real people may be marginalized. “The expenditure restrictions of [2 U.S.C.] §441b are thus meant to ensure that competition among actors in the political arena is truly competition among ideas.”

Even worse than the short-term effect of a corporation’s dominating an election or a ballot initiative, just the fact that it can participate on an unlimited basis as an actor in the political process will, inevitably, cause average working Americans—the 95 percent who make less than $100,000 a year—to conclude that their “democracy” is now rigged. The result will be that more and more people will simply stop participating in politics (it’s interesting to note how many politicians announced within weeks of this decision that they would not run for reelection), stop being informed about politics, and stop voting. Our democracy will wither and could die.

In addition to this immediate drowning out of noncorporate voices, there may be deleterious effects that follow soon thereafter. Corporate “domination” of electioneering can generate the impression that corporations dominate our democracy. When citizens turn on their televisions and radios before an election and hear only corporate electioneering, they may lose faith in their capacity, as citizens, to influence public policy. A Government captured by corporate interests, they may come to believe, will be neither responsive to their needs nor willing to give their views a fair hearing.

The predictable result is cynicism and disenchantment: an increased perception that large spenders “call the tune” and a reduced “willingness of voters to take part in democratic governance.” To the extent that corporations are allowed to exert undue influence in electoral races, the speech of the eventual winners of those races may also be chilled. Politicians who fear that a certain corporation can make or break their reelection chances may be cowed into silence about that corporation. On a variety of levels, unregulated corporate electioneering might diminish the ability of citizens to “hold officials account- able to the people,” and disserve the goal of a public debate that is “uninhibited, robust, and wide-open.” At the least, I stress again, a legislature is entitled to credit these concerns and to take tailored measures in response.

And even if humans were willing to try to take on corporations (maybe a billionaire or two with good ethics would run for office?), virtually every single person who tries to run for office will have to dance to the corporate tune or risk being totally destroyed by the huge and now-unlimited amounts of cash that corporations can rain down on our heads.

The majority’s unwillingness to distinguish between corporations and humans similarly blinds it to the possibility that corporations’ “war chests” and their special “advantages” in the legal realm may translate into special advantages in the market for legislation. When large numbers of citizens have a common stake in a measure that is under consideration, it may be very difficult for them to coordinate resources on behalf of their position. The corporate form, by contrast, “provides a simple way to channel rents to only those who have paid their dues, as it were.”

Anyone concerned with the integrity of the political system should note that this decision affects the legitimacy of elections not only of the legislative and executive branches but also of judges. As Bill Moyers and Michael Winship wrote in the Huffington Post in February 2010,

Ninety-eight percent of all the lawsuits in this country take place in the state courts. In 39 states, judges have to run for election—that’s more than 80 percent of the state judges in America.

The Citizens United decision made those judges who are elected even more susceptible to the corrupting influence of cash, for many of their decisions in civil cases directly affect corporate America, and a significant amount of the money judges raise for their campaigns comes from lobbyists and lawyers.[9]

Those inclined to underestimate the influence of cash on judicial elections should be reminded that during the 1990s,

candidates for high court judgeships in states around the country and the parties that supported them raised $85 million dollars for their campaigns. Since the year 2000, the numbers have more than doubled to over $200 million.

The nine justices currently serving on the Texas Supreme Court have raised nearly $12 million in campaign contributions. The race for a seat on the Pennsylvania Supreme Court last year was the most expensive judicial race in the country, with more than four and a half million dollars spent by the Democrats and Republicans. With the Supreme Court’s Citizens United decision, corporate money’s muscle got a big hypodermic needle full of steroids.[10]

This decision was a naked handoff of raw political power to corporate forces by five unelected judges, and the other four members of the Court (as you just read) said so in the plainest and most blunt terms. Horrified by the dissent and of being called “misguided,” “dangerous,” and “reckless” by his colleagues, Justice Scalia wrote a short concurring opinion with his four conservative peers, trying to push back against the Stevens/Ginsburg/Sotomayor/ Breyer dissent:

The dissent embarks on a detailed exploration of the Framers’ views about “the role of corporations in society.” The Framers didn’t like corporations, the dissent concludes, and therefore it follows (as night the day) that corporations had no rights of free speech....

Despite the corporation-hating quotations the dissent has dredged up, it is far from clear that by the end of the 18th century corporations were despised. If so, how came there to be so many of them?...Indeed, to exclude or impede corporate speech is to muzzle the principal agents of the modern free economy. We should celebrate rather than condemn the addition of this [corporate] speech to the public debate.

Justice Roberts offered his own short concurring opinion, in self-defense. “The government urges us in this case to uphold a direct prohibition on [corporate] political speech,” he wrote. And, of course:

First Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of our democracy.

The Court properly rejects that theory, and I join its opinion in full. The first Amendment protects more than just the individual on a soapbox and the lonely pamphleteer.

Indeed, with this decision in place and the law of the land, the First Amendment now protects the “free speech” rights of the presidents of Russia and China and Iran to form corporations in the United States and pour millions of dollars toward supporting or defeating the politicians of their choice.

It protects the “right” of the largest polluting corporations on earth to politically destroy any politician who wants to give any more authority to the Environmental Protection Agency. It protects their “right” to elevate to elected status any politician who is willing to dismantle the EPA—or any other government agency that protects or defends the people of America from corporate predation.

Corporatism or Fascism?

In the 1930s and the 1940s, the kind of corporatism that the Roberts Court created in America with the Citizens United ruling had a different name. As the 1983 American Heritage Dictionary noted, fascism is “a system of govern- ment that exercises a dictatorship of the extreme right, typically through the merging of state and business leadership, together with belligerent nationalism.” [Italics added.]

Today, knowing the horrors of what Hitler committed in the name of fascism, it’s difficult to use the word in contemporary writing because so many people think the discussion is about Nazism or genocide. But fascism is something the generation that grew up in the 1930s knew well—it was even a popular and widespread movement in the United States during that decade—and it wasn’t until after the world saw the horrors of World War II that the word fell into popular disuse other than as an epithet.

But before the war ended and the word’s popular meaning became contaminated with Hitler’s death camps, Americans used it to describe the authoritarian corporatism of its founder, Benito Mussolini, his fascist follower and ally Franco (Francisco Franco Bahamonde) in Spain, and, of course, in Germany, where German corporations had come to play such a large role in the administration of the government.

Thus in early 1944 the New York Times asked Vice President Henry Agard Wallace to, as Wallace noted, “write a piece answering the following questions: What is a fascist? How many fascists have we? How dangerous are they?”

Vice President Wallace’s answers to those questions were published in the Times on April 9, 1944, at the height of the war against the Axis powers of Germany and Japan:[11]

The really dangerous American fascists are not those who are hooked up directly or indirectly with the Axis. The FBI has its finger on those...With a fascist the problem is never how best to present the truth to the public but how best to use the news to deceive the public into giving the fascist and his group more money or more power....

American fascism will not be really dangerous until there is a purposeful coalition among the cartelists, the deliberate poisoners of public information...

Noting that, “Fascism is a worldwide disease,” Wallace further suggested that fascism’s “greatest threat to the United States will come after the war” and will manifest “within the United States itself.”

In his strongest indictment of the tide of fascism, the vice president of the United States saw rising in America, he added:

They claim to be super-patriots, but they would destroy every liberty guaranteed by the Constitution. They demand free enterprise, but are the spokesmen for monopoly and vested interest. Their final objective toward which all their deceit is directed is to capture political power so that, using the power of the state and the power of the market simultaneously, they may keep the common man in eternal subjection.

Finally, Wallace said,

The myth of fascist efficiency has deluded many people....Democracy to crush fascism internally must...develop the ability to keep people fully employed and at the same time balance the budget. It must put human beings first and dollars second. It must appeal to reason and decency and not to violence and deceit. We must not tolerate oppressive government or industrial oligarchy in the form of monopolies and cartels.

Wallace’s president, Franklin D. Roosevelt, also called out corporate power when he accepted his party’s renomination in 1936 in Philadelphia:[12]

Out of this modern civilization economic royalists [have] carved new dynasties....It was natural and perhaps human that the privileged princes of these new economic dynasties, thirsting for power, reached out for control over government itself. They created a new despotism and wrapped it in the robes of legal sanction....And as a result the average man once more confronts the problem that faced the Minute Man.

Speaking indirectly of the fascists that Wallace would directly name almost a decade later, Roosevelt brought the issue to its core:

These economic royalists complain that we seek to overthrow the institutions of America. What they really complain of is that we seek to take away their power.

And our allegiance to American institutions requires the overthrow of this kind of power!

Fascism is rising in America, this time calling itself “compassionate conservatism,” and “the free market” in a “flat” world. The point of its spear is “corporate personhood” and “corporate free-speech rights.”

The behavior of the Roberts Court in Citizens United eerily parallels the day in 1936 when Roosevelt said: “In vain they seek to hide behind the flag and the Constitution. In their blindness they forget what the flag and the Constitution stand for.”[13]

Even before the Citizens United case blew open the doors to a corporate takeover of American politics, the corrosive influence of corporations’ having “rights” was already evident. Now these “unequal consequences” have been put on steroids.

Thom Hartmann is a New York Times bestselling Project Censored Award winning author and host of a nationally syndicated progressive radio talk show. You can learn more about Thom Hartmann at his website and find out what stations broadcast his radio program. He also now has a daily independent television program, The Big Picture, syndicated by FreeSpeech TV, RT TV, and 2oo community TV stations. You can also listen or watch Thom over the Internet.

Unequal Protection: Corporate Control of Politics

(Image: Jared Rodriguez / Truthout)During the bruising primary election season of 2008, a right-wing group put together a ninety-minute hit-job on Hillary Clinton and wanted to run it on TV stations in strategic states. The Federal Election Commission (FEC) ruled that advertisements for the “documentary” were actually “campaign ads” and thus fell under the restrictions on campaign spending of the McCain- Feingold Act and thus stopped them from airing. (Corporate contributions to campaigns have been banned repeatedly and in various ways since 1907 when Republican President Teddy Roosevelt pushed through the Tillman Act.)

Citizens United, the right-wing group, sued to the Supreme Court, with right-wing hit man and former Reagan solicitor general Ted Olson—the man who argued Bush’s side of Bush v. Gore—as their lead lawyer.

This new case, Citizens United v. Federal Election Commission, presented the best opportunity for the Roberts Court to use its five-vote majority to totally rewrite the face of politics in America, rolling us back to the pre-1907 Era of the Robber Barons. And if there was a man to do it, it was John Roberts.

Although he was handsome, with a nice smile and photogenic young children, Roberts was no friend to average working Americans. If anything, he was the most radical judicial activist appointed to the Court in more than a century. He had worked most of his life in the interest of the rich and powerful and was chomping at the bit for a chance to turn more of America over to his friends.

As Jeffrey Toobin wrote in the New Yorker (“No More Mr. Nice Guy”):

In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.[1]

And the fastest way the modern Republican Party could recover its power over the next decade was to immediately clear away all impediments to unrestrained corporate participation in electoral politics. If a corporation likes a politician, it can ensure that he is elected every time; if it becomes upset with a politician, it can carpet-bomb her district with a few million dollars’ worth of ads and politically destroy her.

Watch Thom Hartmann's "The Daily Take":

In the Citizens United case, the Roberts Court listened to arguments and took briefs and even discussed it among themselves as if they were going to make a decision. But instead of deciding the case on the relatively narrow grounds on which it had originally been argued—whether a single part of a single piece of legislation (McCain-Feingold) was unconstitutional—the Court asked for it to be reargued in September 2009 and asked that the breadth of the arguments be expanded to reexamine the rationales for Congress to have any power to regulate corporate “free speech.”

In this they were going along with a request from Theodore B. Olson, who argued Bush v. Gore, and would now not just look at this narrow case but go back nearly twenty years to reexamine and perhaps overturn their own ruling in the Austin v. Michigan Chamber of Commerce case, where the Court had held that it was constitutional for Congress to pass limits on corporate political activities, as well as its decision in 2003 to uphold McCain-Feingold as constitutional.”[2]

The Background of Citizens United

The setup for this 2010 decision came in June 2007 in the Federal Election Commission v. Wisconsin Right to Life case, [3] in which the Roberts Court ruled that the FEC couldn’t prevent Wisconsin Right to Life from running ads just because it was a corporation.

once defended his criticism of the Moroccan monarch (lèse majesté being a serious crime in Morocco) as follows: “I’m not a revolutionary, I’m just defending freedom of speech. I never said we had to change the king—no, no, no, no! But I said that some things the king is doing, I do not like. Is that a crime?” Well, in the United States (making due allowance for the fact that we have elected representatives instead of a king) it is a crime, at least if the speaker is a union or a corporation (including not-for-profit public-interest corporations)... That is the import of §203 of the Bipartisan Campaign Reform Act of 2002 (BCRA)...

The idea of Congress passing laws that limited corporate “free speech” was clearly horrifying to Scalia. He went after the 1990 Austin v. Michigan Chamber of Commerce case, in which the then-Rehnquist Court had ruled that the Michigan Chamber of Commerce was limited in its “free speech” in a political campaign because it was a corporation.

“This [Austin] was the only pre-McConnell case in which this Court had ever permitted the Government to restrict political speech based on the corporate identity of the speaker,” Scalia complained. “Austin upheld state restric tions on corporate independent expenditures,” and, God forbid, “The statute had been modeled after the federal statute that BCRA §203 amended...”

The Austin case, Scalia concluded, with four others nodding, “was a significant departure from ancient First Amendment principles. In my view, it was wrongly decided.”

Scalia also quoted at length from opinions in the Grosjean v. American Press Co. 1936 case, in Scalia’s words, “holding that corporations are guaranteed the ‘freedom of speech and of the press, safeguarded by the due process of law clause of the Fourteenth Amendment’”; he also quoted from the 1986 Pacific Gas & Elec. Co. v. Public Util. Comm’n of California case: “The identity of the speaker is not decisive in determining whether speech is protected”; “corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster.”

The bottom line, for Scalia, was, “The principle that such advocacy is ‘at the heart of the First Amendment’s protection’ and is ‘indispensable to decision making in a democracy’ is ‘no less true because the speech comes from a corporation rather than an individual.’”

Continuing to quote from a plurality opinion in Pacific Gas, Scalia “rejected the arguments that corporate participation ‘would exert an undue influence on the outcome of a referendum vote’; that corporations would ‘drown out other points of view’ and ‘destroy the confidence of the people in the democratic process...’”

As Scalia himself wrote in his earlier opinion in FEC v. Wisconsin Right to Life: “FECA was directed to expenditures not just by ‘individuals,’ but by ‘persons,’ with ‘persons’ specifically defined to include ‘corporation[s].’” (Italics added.)

Chief Justice Roberts weighed in, too, in the main decision.[4] It’s a fascinating decision to read—and search for occurrences of the word corporation. Here is one of Roberts’s more convoluted observations in defense of corporate free-speech rights:

Accepting the notion that a ban on campaign speech could also embrace issue advocacy would call into question our holding in Bellotti that the corporate identity of a speaker does not strip corporations of all free speech rights. It would be a constitutional “bait and switch” to conclude that corporate campaign speech may be banned in part because corporate issue advocacy is not, and then assert that corporate issue advocacy may be banned as well, pursuant to the same asserted compelling interest, through a broad conception of what constitutes the functional equivalent of campaign speech, or by relying on the inability to distinguish campaign speech from issue advocacy.

Bottom line: corporate free-speech rights are real rights that must be respected.

Justice Souter wrote a rather frightening dissent[5] (this was a 5-to-4 decision, with the usual right-wing suspects in the majority) in the FEC v. WRTL case. In it he worried out loud that the unelected Court’s knocking down restrictions on corporate or union funding of elections would be destructive of the core values of democracy and the electoral process on which it rests:

Finally, it goes without saying that nothing has changed about the facts. In Justice Frankfurter’s words, they demonstrate a threat to “the integrity of our electoral process,” which for a century now Congress has repeatedly found to be imperiled by corporate, and later union, money: witness the Tillman Act, Taft-Hartley, FECA, and BCRA.

McConnell was our latest decision vindicating clear and reasonable boundaries that Congress has drawn to limit “the corrosive and distorting effects of immense aggregations of wealth,” and the decision could claim the justification of ongoing fact as well as decisional history in recognizing Congress’s authority to protect the integrity of elections from the distortion of corporate and union funds.

After today, the ban on contributions by corporations and unions and the limitation on their corrosive spending when they enter the political arena are open to easy circumvention, and the possibilities for regulating corporate and union campaign money are unclear.

The ban on contributions will mean nothing much, now that companies and unions can save candidates the expense of advertising directly, simply by running “issue ads” without express advocacy, or by funneling the money through an independent corporation like Wisconsin Right to Life.

Sounding almost depressed, Souter closed his dissent with these words: “I cannot tell what the future will force upon us, but I respectfully dissent from this judgment today.”

Attempts by corporations (and their lawyers, like Roberts was before ascending to a federal court) to usurp American democracy are nothing new, as David Souter well knew. Corporatism has always been a threat to democracy. The problem was that corporations were gaining increasing traction in what had become a dire conflict with democracy itself. The rights of “natural” persons were losing ground at an accelerating pace, and in 2010 things got a whole lot worse very, very fast.

Citizens United: The Roberts Court Overturns a Century of Law

On January 21, 2010, in another 5-to-4 decision with the Republican five justices on the winning side, the Supreme Court ruled that it is unconstitutional for Congress to pass or the president to sign into law any restrictions on the “right” of a corporation to pour money into political campaigns, so long as the money isn’t directly given to the politicians, their campaigns, or their parties.

The majority decision, written by Justice Kennedy, was quite explicit in saying that the government has no right to limit corporate power or corporate “free speech.”[6]

Kennedy began this line of reasoning by positing, “Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints.”

It sounds reasonable. He even noted, sounding almost like something from a Martin Luther King Jr or JFK speech, that:

By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration.

But who is that “disadvantaged person or class” of whom Kennedy was speaking? He lays it out bluntly (the parts in single quotation marks are where he is quoting from previous Supreme Court decisions): “The Court has recognized that First Amendment protection extends to corporations....Under that rationale of these precedents, political speech does not lose First Amendment protection ‘simply because its source is a corporation.’”

Two sentences later he nails it home: “The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not ‘natural persons.’”

Bemoaning how badly corporations and their trade associations had been treated by the Congress of the United States for more than a hundred years in passing laws all the way back to the 1907 Tillman Act (which forbade corporations from giving money to politicians), Kennedy stuck up for the “disadvantaged” corporate “persons” the Roberts Court was seeking in this decision to protect:

The censorship we now confront is vast in its reach. The Government has “muffled the voices that best represent the most significant segments of the economy.” And “the electorate has been deprived of information, knowledge, and opinion vital to its function.” By suppressing the speech of manifold corporations, both for-profit and non-profit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests.

Paraphrasing James Madison’s plea in Federalist No. 10 that Americans resist the human tendency to form political factions but instead work together for the common good, Kennedy added at the end of that paragraph, “Factions should be checked by permitting them all to speak, and by entrusting the people to judge what is true and what is false.”

In other words, if a single corporation spends $700 million in television advertising to tell you that, for example, Senator Bernie Sanders is a “bad person” because he sponsored legislation it doesn’t like or that limits its profitability, and Sanders can raise only $3 million to defend himself with a few local TV spots, you as the TV viewer and voting citizen can easily decide which is true and which is not.

Justices Kennedy, Alito, Roberts, Thomas, and Scalia were writing as if they had never seen a political—or, for that matter, a consumer product— advertisement. The whole point of such campaigns is not to present the “truth” but to present an emotional (and often misleading) argument that will change people’s minds to conform to the message of the advertiser. But you won’t find a word of that simple reality of advertising and marketing anywhere in the Citizens United decision.

Corporate executives and their lobbyists saw the value to them of this Supreme Court decision immediately. On February 7, 2010, the New York Times published an article by David D. Kirkpatrick titled “In a Message to Democrats, Wall St. Sends Cash to G.O.P.” The article explicitly quoted banking industry sources who said that now that they could use their considerable financial power politically, they were experiencing “buyer’s remorse” over having given Obama’s presidential campaign $89 million in 2008: “Republicans are rushing to capitalize on what they call Wall Street’s ‘buyer’s remorse’ with the Democrats. And industry executives and lobbyists are warning Democrats that if Mr. Obama keeps attacking Wall Street ‘fat cats,’ they may fight back by withholding their cash.”[7]

The article quoted several banking sources as saying they were outraged that the president had criticized their industry for the financial meltdown of 2008 or their big bonuses. It wrapped up with a quote from Texas Republican John Cornyn, the senator tasked with raising money for the National Republican Senatorial Committee, noting that he was now making regular visits to Wall Street in New York City because: “I just don’t know how long you can expect people to contribute money to a political party whose main plank of their platform is to punish you.”

It was a loud shot across Obama’s bow, and within two weeks he had changed his tune on a wide variety of initiatives, ranging from taxes on the wealthy to banking, insurance, and pharmaceutical industry reforms.

The simple fact is that about $5 billion was spent in all the political campaigns from coast to coast in the elections of 2008, a bit less than $2 billion of that on the presidential race. Compare that with January 2010, when a small cadre of senior executives and employees of the nation’s top banks on Wall Street split up among themselves over $145 billion in personal bonus money.

If just those few thousand people had decided to take just 3 percent of their bonus and redirect it into a political campaign, no politician in America could stand against them. And now none do. And that’s just the banksters! Profits in the tens and hundreds of billions of dollars were reported in 2009 by oil, pharmaceutical, insurance, agriculture, and retailing industries—all now considering how to use part of their profits to influence political races.

Justice John Paul Stevens, with the concurrence of Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor, wrote the main dissent in the Citizens United case. Calling the decision “misguided” in the first paragraph of his ninety-page dissent, Stevens (and colleagues) pointed out that the majority on the Court had just handed our country over to any foreign interest willing to incorporate here and spend money on political TV ads.

If taken seriously, our colleagues’ assumption that the identity of a speaker has no relevance to the Government’s ability to regulate political speech would lead to some remarkable conclusions. Such an assumption would have accorded the propaganda broadcasts to our troops by “Tokyo Rose” during World War II the same protection as speech by Allied commanders. More pertinently, it would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans: To do otherwise, after all, could “‘enhance the relative voice’” of some (i.e., humans) over others (i.e., corporations).

Speaking directly to that issue, on the day of the decision British Broadcasting Corporation (BBC) investigative journalist Greg Palast wrote an article whose headline is self-explanatory: “Supreme Court to OK Al Qaeda Donation for Sarah Palin?”[8]

Palast laid it out explicitly and, according to four of the most senior members of the U.S. Supreme Court, correctly when he wrote, “Think: Manchurian Candidate.” He pointed out that our elections could now be decided not just by money-bombs from American corporations but “from ARAMCO, the Saudi Oil corporation’s US unit...or the Chinese People’s Liberation Army. Or from Bin Laden Construction corporation. Or Bin Laden Destruction Corporation.”

Ted Olson, the lawyer who argued the winning Citizens United side before the Court, lost his wife on the plane hijacked on 9/11 and flown into the Pentagon. “Maybe it was a bit crude of me,” Palast said, “but I contacted Olson’s office to ask how much ‘Al Qaeda, Inc.’ should be allowed to donate to support the election of his local congressman.” As of this writing, Palast tells me, Olson has not replied to his question.

In the same paragraph of the dissent just quoted about foreign corporations, Justice Stevens further points out the absurdity of granting corporations what are essentially citizenship rights under the Constitution, suggesting that perhaps the next SCOTUS decision will be to give corporations the right to vote: “Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.”

(Ironically, ten years earlier in the Alexander v. Mineta case, where citizens of Washington, D.C., were asking for the right to vote for a real member of Congress, just a few months before the Bush v. Gore case the Rehnquist Court had explicitly ruled that the Constitution does not guarantee the right of U.S. citizens to vote for president.)

Stevens recounted the history of the evolution of corporations in America, noting, “Corporations were created, supervised, and conceptualized as quasi-public entities, ‘designed to serve a social function for the state.’ It was ‘assumed that [they] were legally privileged organizations that had to be closely scrutinized by the legislature because their purposes had to be made consistent with public welfare.’”

Quoting earlier Supreme Court cases and the Founders, Stevens wrote: “The word ‘soulless’ constantly recurs in debates over corporations...Corporations, it was feared could concentrate the worst urges of whole groups of men.” Stevens was right: Thomas Jefferson famously fretted that corporations would subvert the Republic.

And, Stevens continued, the Founders could not have possibly meant to confer First Amendment rights of free speech on corporations when they wrote the Constitution in 1787 and the Bill of Rights in 1789 because, “All general business corporation statues appear to date from well after 1800”:

The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans they had in mind.

In an incredible irony, Stevens even quoted Chief Justice John Marshall, the man who had first, in the 1803 Marbury case, given the Court itself the power to overrule laws like McCain-Feingold passed by Congress: “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being a mere creature of law, it posses only those properties which the charter of its creation confers upon it.”

Stevens’s dissent called out Roberts, Alito, Scalia, Thomas, and Kennedy for their behavior in this case, which he said was “the height of recklessness to dismiss Congress’ years of bipartisan deliberation and its reasoned judgment...”:

The fact that corporations are different from human beings might seem to need no elaboration, except that the majority opinion almost completely elides it....Unlike natural persons, corporations have “limited liability” for their owners and managers, “perpetual life,” separation of ownership and control, “and favorable treatment of the accumulation of assets...that enhance their ability to attract capital and to deploy their resources in ways that maximize the return on their shareholders’ investments.” Unlike voters in U.S. elections, corporations may be foreign controlled.

Noting that “they inescapably structure the life of every citizen,” Stevens continued: “It might be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their ‘personhood’ often serves as a useful legal fiction. But they are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.”

In this very eloquent and pointed dissent, Stevens even waxed philosophical, asking a series of questions for which there couldn’t possibly be any clear or obvious answers given the Roberts court’s decision:

It is an interesting question “who” is even speaking when a business corporation places an advertisement that endorses or attacks a particular candidate. Presumably it is not the customers or employees, who typically have no say in such matters. It cannot realistically be said to be the shareholders, who tend to be far removed from the day-to-day decisions of the firm and whose political preferences may be opaque to management. Perhaps the officers or directors of the corporation have the best claim to be the ones speaking, except their fiduciary duties generally prohibit them from using corporate funds for personal ends. Some individuals associated with the corporation must make the decision to place the ad, but the idea that these individuals are thereby fostering their self-expression or cultivating their critical faculties is fanciful.

Stevens noted further, “The majority seems oblivious to the simple truth” that they are, with this decision, setting up a situation that “does not merely support the election of his local congressman.” As of this writing, Palast tells me, Olson has not replied to his question.

In the same paragraph of the dissent just quoted about foreign corporations, Justice Stevens further points out the absurdity of granting corporations what are essentially citizenship rights under the Constitution, suggesting that perhaps the next SCOTUS decision will be to give corporations the right to vote: “Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.”

(Ironically, ten years earlier in the Alexander v. Mineta case, where citizens of Washington, D.C., were asking for the right to vote for a real member of Congress, just a few months before the Bush v. Gore case the Rehnquist Court had explicitly ruled that the Constitution does not guarantee the right of U.S. citizens to vote for president.)

Stevens recounted the history of the evolution of corporations in America, noting, “Corporations were created, supervised, and conceptualized as quasi-public entities, ‘designed to serve a social function for the state.’ It was ‘assumed that [they] were legally privileged organizations that had to be closely scrutinized by the legislature because their purposes had to be made consistent with public welfare.’”

Quoting earlier Supreme Court cases and the Founders, Stevens wrote: “The word ‘soulless’ constantly recurs in debates over corporations...Corporations, it was feared could concentrate the worst urges of whole groups of men.” Stevens was right: Thomas Jefferson famously fretted that corporations would subvert the Republic.

And, Stevens continued, the Founders could not have possibly meant to confer First Amendment rights of free speech on corporations when they wrote the Constitution in 1787 and the Bill of Rights in 1789 because, “All general business corporation statues appear to date from well after 1800”:

The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans they had in mind.

In an incredible irony, Stevens even quoted Chief Justice John Marshall, the man who had first, in the 1803 Marbury case, given the Court itself the power to overrule laws like McCain-Feingold passed by Congress: “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being a mere creature of law, it posses only those properties which the charter of its creation confers upon it.”

Stevens’s dissent called out Roberts, Alito, Scalia, Thomas, and Kennedy for their behavior in this case, which he said was “the height of recklessness to dismiss Congress’ years of bipartisan deliberation and its reasoned judgment...”:

The fact that corporations are different from human beings might seem to need no elaboration, except that the majority opinion almost completely elides it....Unlike natural persons, corporations have “limited liability” for their owners and managers, “perpetual life,” separation of ownership and control, “and favorable treatment of the accumulation of assets...that enhance their ability to attract capital and to deploy their resources in ways that maximize the return on their shareholders’ investments.” Unlike voters in U.S. elections, corporations may be foreign controlled.

Noting that “they inescapably structure the life of every citizen,” Stevens continued: “It might be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their ‘personhood’ often serves as a useful legal fiction. But they are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.”

In this very eloquent and pointed dissent, Stevens even waxed philosophical, asking a series of questions for which there couldn’t possibly be any clear or obvious answers given the Roberts court’s decision:

It is an interesting question “who” is even speaking when a business corporation places an advertisement that endorses or attacks a particular candidate. Presumably it is not the customers or employees, who typically have no say in such matters. It cannot realistically be said to be the shareholders, who tend to be far removed from the day-to-day decisions of the firm and whose political preferences may be opaque to management. Perhaps the officers or directors of the corporation have the best claim to be the ones speaking, except their fiduciary duties generally prohibit them from using corporate funds for personal ends. Some individuals associated with the corporation must make the decision to place the ad, but the idea that these individuals are thereby fostering their self-expression or cultivating their critical faculties is fanciful.

Stevens noted further, “The majority seems oblivious to the simple truth” that they are, with this decision, setting up a situation that “does not merely pit the anticorruption interest against the First Amendment, but also pit[s] competing First Amendment values against each other.” And it becomes particularly problematic “when the speakers in question are not real people” but corporations.

This decision wasn’t merely wrong—both in a contemporary and a historical sense—the Stevens minority argued in their dissent; it was dangerous. The four-judge dissent was explicit, clear, and shocking in how bluntly the three seniormost members of the Court (plus the newbie, Sotomayor) called out their colleagues, two of whom were just recently appointed to the Court by George W. Bush.

They started by pointing out that the American people weren’t clamoring for corporations to have personhood and free-speech rights—that call was coming only from the Republican Five justices themselves: “The distinctive threat to democratic integrity posed by corporate domination of politics was recognized at ‘the inception of the republic’ and ‘has been a persistent theme in American political life’ ever since. It is only certain Members of this Court, not the listeners themselves, who have agitated for more corporate electioneering.”*

*Again, the words in single quotation marks are where, in the dissent, the justices themselves are quoting from previous SCOTUS rulings. I’ve removed all the reference citations, as they make it hard to read; anybody wanting to dive deeper into this ninety-page dissent can read it online at www.supremecourtus.gov/opinions/09pdf/08-205.pdf.

They continued, noting that even if we citizens—“the listeners” to corporate speech—were clamoring to hear more of it, it wouldn’t work to our interest because corporate interests are inherently different from human interests:

Austin recognized that there are substantial reasons why a legislature might conclude that unregulated general treasury expenditures will give corporations “unfair influence” in the electoral process, and distort public debate in ways that undermine rather than advance the interests of listeners. The legal structure of corporations allows them to amass and deploy financial resources on a scale few natural persons can match. The structure of a business corporation, furthermore, draws a line between the corporation’s economic interests and the political preferences of the individuals associated with the corporation; the corporation must engage the electoral process with the aim “to enhance the profitability of the company, no matter how persuasive the arguments for a broader or conflicting set of priorities.”

In point of fact, they continued, corporations have a legal obligation to work toward an interest (profits) that is often at odds with the needs of humans and, particularly, local communities. Regardless of how sweet or touchy-feely their Madison Avenue–produced commercials may be, at their core they are machines to make money, not living things and not citizens of a democratic republic. By having free-speech rights equal with people, they argued, corporations will actually harm the “competition among ideas” that the Framers envisioned when they wrote the First Amendment:

“[A] corporation...should have as its objective the conduct of business activities with a view to enhancing corporate profit and shareholder gain.” In a state election such as the one at issue in Austin, the interests of nonresident corporations may be fundamentally adverse to the interests of local voters. Consequently, when corporations grab up the prime broadcasting slots on the eve of an election, they can flood the market with advocacy that bears “little or no correlation” to the ideas of natural persons or to any broader notion of the public good. The opinions of real people may be marginalized. “The expenditure restrictions of [2 U.S.C.] §441b are thus meant to ensure that competition among actors in the political arena is truly competition among ideas.”

Even worse than the short-term effect of a corporation’s dominating an election or a ballot initiative, just the fact that it can participate on an unlimited basis as an actor in the political process will, inevitably, cause average working Americans—the 95 percent who make less than $100,000 a year—to conclude that their “democracy” is now rigged. The result will be that more and more people will simply stop participating in politics (it’s interesting to note how many politicians announced within weeks of this decision that they would not run for reelection), stop being informed about politics, and stop voting. Our democracy will wither and could die.

In addition to this immediate drowning out of noncorporate voices, there may be deleterious effects that follow soon thereafter. Corporate “domination” of electioneering can generate the impression that corporations dominate our democracy. When citizens turn on their televisions and radios before an election and hear only corporate electioneering, they may lose faith in their capacity, as citizens, to influence public policy. A Government captured by corporate interests, they may come to believe, will be neither responsive to their needs nor willing to give their views a fair hearing.

The predictable result is cynicism and disenchantment: an increased perception that large spenders “call the tune” and a reduced “willingness of voters to take part in democratic governance.” To the extent that corporations are allowed to exert undue influence in electoral races, the speech of the eventual winners of those races may also be chilled. Politicians who fear that a certain corporation can make or break their reelection chances may be cowed into silence about that corporation. On a variety of levels, unregulated corporate electioneering might diminish the ability of citizens to “hold officials account- able to the people,” and disserve the goal of a public debate that is “uninhibited, robust, and wide-open.” At the least, I stress again, a legislature is entitled to credit these concerns and to take tailored measures in response.

And even if humans were willing to try to take on corporations (maybe a billionaire or two with good ethics would run for office?), virtually every single person who tries to run for office will have to dance to the corporate tune or risk being totally destroyed by the huge and now-unlimited amounts of cash that corporations can rain down on our heads.

The majority’s unwillingness to distinguish between corporations and humans similarly blinds it to the possibility that corporations’ “war chests” and their special “advantages” in the legal realm may translate into special advantages in the market for legislation. When large numbers of citizens have a common stake in a measure that is under consideration, it may be very difficult for them to coordinate resources on behalf of their position. The corporate form, by contrast, “provides a simple way to channel rents to only those who have paid their dues, as it were.”

Anyone concerned with the integrity of the political system should note that this decision affects the legitimacy of elections not only of the legislative and executive branches but also of judges. As Bill Moyers and Michael Winship wrote in the Huffington Post in February 2010,

Ninety-eight percent of all the lawsuits in this country take place in the state courts. In 39 states, judges have to run for election—that’s more than 80 percent of the state judges in America.

The Citizens United decision made those judges who are elected even more susceptible to the corrupting influence of cash, for many of their decisions in civil cases directly affect corporate America, and a significant amount of the money judges raise for their campaigns comes from lobbyists and lawyers.[9]

Those inclined to underestimate the influence of cash on judicial elections should be reminded that during the 1990s,

candidates for high court judgeships in states around the country and the parties that supported them raised $85 million dollars for their campaigns. Since the year 2000, the numbers have more than doubled to over $200 million.

The nine justices currently serving on the Texas Supreme Court have raised nearly $12 million in campaign contributions. The race for a seat on the Pennsylvania Supreme Court last year was the most expensive judicial race in the country, with more than four and a half million dollars spent by the Democrats and Republicans. With the Supreme Court’s Citizens United decision, corporate money’s muscle got a big hypodermic needle full of steroids.[10]

This decision was a naked handoff of raw political power to corporate forces by five unelected judges, and the other four members of the Court (as you just read) said so in the plainest and most blunt terms. Horrified by the dissent and of being called “misguided,” “dangerous,” and “reckless” by his colleagues, Justice Scalia wrote a short concurring opinion with his four conservative peers, trying to push back against the Stevens/Ginsburg/Sotomayor/ Breyer dissent:

The dissent embarks on a detailed exploration of the Framers’ views about “the role of corporations in society.” The Framers didn’t like corporations, the dissent concludes, and therefore it follows (as night the day) that corporations had no rights of free speech....

Despite the corporation-hating quotations the dissent has dredged up, it is far from clear that by the end of the 18th century corporations were despised. If so, how came there to be so many of them?...Indeed, to exclude or impede corporate speech is to muzzle the principal agents of the modern free economy. We should celebrate rather than condemn the addition of this [corporate] speech to the public debate.

Justice Roberts offered his own short concurring opinion, in self-defense. “The government urges us in this case to uphold a direct prohibition on [corporate] political speech,” he wrote. And, of course:

First Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of our democracy.

The Court properly rejects that theory, and I join its opinion in full. The first Amendment protects more than just the individual on a soapbox and the lonely pamphleteer.

Indeed, with this decision in place and the law of the land, the First Amendment now protects the “free speech” rights of the presidents of Russia and China and Iran to form corporations in the United States and pour millions of dollars toward supporting or defeating the politicians of their choice.

It protects the “right” of the largest polluting corporations on earth to politically destroy any politician who wants to give any more authority to the Environmental Protection Agency. It protects their “right” to elevate to elected status any politician who is willing to dismantle the EPA—or any other government agency that protects or defends the people of America from corporate predation.

Corporatism or Fascism?

In the 1930s and the 1940s, the kind of corporatism that the Roberts Court created in America with the Citizens United ruling had a different name. As the 1983 American Heritage Dictionary noted, fascism is “a system of govern- ment that exercises a dictatorship of the extreme right, typically through the merging of state and business leadership, together with belligerent nationalism.” [Italics added.]

Today, knowing the horrors of what Hitler committed in the name of fascism, it’s difficult to use the word in contemporary writing because so many people think the discussion is about Nazism or genocide. But fascism is something the generation that grew up in the 1930s knew well—it was even a popular and widespread movement in the United States during that decade—and it wasn’t until after the world saw the horrors of World War II that the word fell into popular disuse other than as an epithet.

But before the war ended and the word’s popular meaning became contaminated with Hitler’s death camps, Americans used it to describe the authoritarian corporatism of its founder, Benito Mussolini, his fascist follower and ally Franco (Francisco Franco Bahamonde) in Spain, and, of course, in Germany, where German corporations had come to play such a large role in the administration of the government.

Thus in early 1944 the New York Times asked Vice President Henry Agard Wallace to, as Wallace noted, “write a piece answering the following questions: What is a fascist? How many fascists have we? How dangerous are they?”

Vice President Wallace’s answers to those questions were published in the Times on April 9, 1944, at the height of the war against the Axis powers of Germany and Japan:[11]

The really dangerous American fascists are not those who are hooked up directly or indirectly with the Axis. The FBI has its finger on those...With a fascist the problem is never how best to present the truth to the public but how best to use the news to deceive the public into giving the fascist and his group more money or more power....

American fascism will not be really dangerous until there is a purposeful coalition among the cartelists, the deliberate poisoners of public information...

Noting that, “Fascism is a worldwide disease,” Wallace further suggested that fascism’s “greatest threat to the United States will come after the war” and will manifest “within the United States itself.”

In his strongest indictment of the tide of fascism, the vice president of the United States saw rising in America, he added:

They claim to be super-patriots, but they would destroy every liberty guaranteed by the Constitution. They demand free enterprise, but are the spokesmen for monopoly and vested interest. Their final objective toward which all their deceit is directed is to capture political power so that, using the power of the state and the power of the market simultaneously, they may keep the common man in eternal subjection.

Finally, Wallace said,

The myth of fascist efficiency has deluded many people....Democracy to crush fascism internally must...develop the ability to keep people fully employed and at the same time balance the budget. It must put human beings first and dollars second. It must appeal to reason and decency and not to violence and deceit. We must not tolerate oppressive government or industrial oligarchy in the form of monopolies and cartels.

Wallace’s president, Franklin D. Roosevelt, also called out corporate power when he accepted his party’s renomination in 1936 in Philadelphia:[12]

Out of this modern civilization economic royalists [have] carved new dynasties....It was natural and perhaps human that the privileged princes of these new economic dynasties, thirsting for power, reached out for control over government itself. They created a new despotism and wrapped it in the robes of legal sanction....And as a result the average man once more confronts the problem that faced the Minute Man.

Speaking indirectly of the fascists that Wallace would directly name almost a decade later, Roosevelt brought the issue to its core:

These economic royalists complain that we seek to overthrow the institutions of America. What they really complain of is that we seek to take away their power.

And our allegiance to American institutions requires the overthrow of this kind of power!

Fascism is rising in America, this time calling itself “compassionate conservatism,” and “the free market” in a “flat” world. The point of its spear is “corporate personhood” and “corporate free-speech rights.”

The behavior of the Roberts Court in Citizens United eerily parallels the day in 1936 when Roosevelt said: “In vain they seek to hide behind the flag and the Constitution. In their blindness they forget what the flag and the Constitution stand for.”[13]

Even before the Citizens United case blew open the doors to a corporate takeover of American politics, the corrosive influence of corporations’ having “rights” was already evident. Now these “unequal consequences” have been put on steroids.

Thom Hartmann is a New York Times bestselling Project Censored Award winning author and host of a nationally syndicated progressive radio talk show. You can learn more about Thom Hartmann at his website and find out what stations broadcast his radio program. He also now has a daily independent television program, The Big Picture, syndicated by FreeSpeech TV, RT TV, and 2oo community TV stations. You can also listen or watch Thom over the Internet.